A Corruption-fighting Attorney General? Easy to Say, Harder to Do

Oct 30, 2018 6:00 AM Illinois Attorney General Lisa Madigan has launched a criminal investigation into how the Rauner administration handled a fatal Legionnaires' outbreak at a state veteran's home in downstate Quincy. (Joshua Lott/Getty Images)

It’s popular come election time for Illinois Republicans and Democrats, when political circumstances suit them, to clamor for the state’s top lawyer to investigate corruption, almost always to no avail.

But when Democratic Attorney General Lisa Madigan a few weeks ago began investigating the Rauner administration over how it handled a spate of Legionnaires’ Disease-related deaths at the state home for veterans in Quincy, the GOP cried foul.

Even though 14 people have died and WBEZ news reports show the Rauner administration waited nearly a week to notify the public about the initial outbreak, the Quincy case vividly illustrates the reason why laws in Illinois and almost all other states make it very difficult for elected attorneys general to lead the very anti-corruption crusades partisans often demand.

What one party may hail as a righteous quest for justice, the other likely will condemn as a politically tainted abuse of power.

Yet candidates often cannot resist taking up the cudgel of anti-corruption, sometimes identifying their targets by name.

“If I say, ‘Elect me and I’ll go after Donald Trump or Speaker (Mike) Madigan or Jared Kushner,’ anyone who says that is absolutely wrong,” said James Tierney, the former attorney general of Maine and now a lecturer at Harvard Law School. “That is the opposite of what our criminal justice system is supposed to be about.”

In Illinois and elsewhere, however, there’s often a chasm between political rhetoric and legal reality, with candidates for high office eager to fashion themselves as the reincarnation of Eliot Ness.

Lisa Madigan did it when she first ran for attorney general in 2002. That same year, then-Democratic candidate for governor (and future felon) Rod Blagojevich accused his GOP rival, the attorney general at the time, of doing nothing about a licenses-for-bribes scandal that would eventually send to prison former Republican Gov. George Ryan.

Republican Erika Harold is running against Democrat Kwame Raoul for Illinois attorney general. Harold has vowed to fight public corruption, if elected, but that might be difficult under state law. (Harold photo: Stuart Isett/Fortune; Raoul photo: the candidate's website)

In his successful 2014 campaign for governor, Republican Bruce Rauner promised that, if elected, he would “prosecute” corruption, a power not granted the state’s chief executive by the Illinois Constitution. This year, Erika Harold, the Republican vying to succeed the soon-to-retire Attorney General Madigan, is stressing a similar corruption-busting pledge.

All of which ignores the dictates of Illinois law, which grants the state’s top lawyer broad power to use a statewide grand jury to investigate crimes regarding drugs, gun trafficking, gangs, child prostitution and terrorism. Missing from that list is public corruption.

Madigan’s entrée into the Quincy case in downstate Adams County is a nod to how the law makes it difficult, though not impossible, for her office to get involved in such matters. Lacking authority to launch her own grand jury probe, Madigan was required to obtain permission from the Adams County state’s attorney, a Republican who had not opened his own investigation, to use his county grand jury.

“The reality is that over a dozen people died,” Ann Spillane, Madigan’s chief of staff, said in defense of the investigation. “There has to be an investigation to determine if laws were broken.”

Maura Possley, a spokeswoman for Madigan, said it was “fairly frequent” for the attorney general to become involved in criminal investigations. In those cases outside the bounds of a statewide grand jury, the attorney general’s involvement can only come in two ways: she can ask permission from the local prosecutor or the prosecutor can ask for her help.

Few such cases are as high profile as the Quincy matter, however.

The cumbersome procedural path Madigan usually must follow under Illinois law is in line with the legal reality in most states that opt to give federal and local prosecutors first crack in matters involving corruption.

Only Rhode Island, Delaware and Alaska give their attorneys general exclusive criminal jurisdiction, according to the National Association of Attorneys General. In six other states, Connecticut among them, attorneys general have no criminal jurisdiction, the group says. The rest, Illinois included, impose varying levels of impediments.

There is no “national mandate for attorneys general to do anything about corruption,” said Tierney, who has taught courses on the role of state attorneys general.

The lines between political bluster and prosecutorial restraint have been increasingly tested in recent years.

As a presidential candidate in 2016, Donald Trump declared that, if elected, he would prosecute Democratic rival Hillary Clinton for her use of a private email server to send classified material when she served as U.S. secretary of state. Now as president, Trump has repeatedly hammered his own attorney general, Jeff Sessions, for not using his power to investigate Clinton and other Trump critics.

In this year’s New York Democratic primary, attorney general candidate Zephyr Teachout vowed to prosecute federal immigration officials for what she said was illegal behavior. Teachout lost the primary.

To be sure, there’s more than ample evidence to show that corruption is an enduring and bipartisan affliction here and elsewhere.

Three former Illinois governors have been convicted of federal corruption charges since the 1970s and another went to prison for bank fraud committed after he left office. They have been joined in ignominy by several onetime Chicago aldermen, members of Congress, state lawmakers and municipal officials in the suburbs and downstate.

An annual Justice Department tally of public corruption convictions across Illinois hit 34 in 2017. That is higher than the 19 recorded by the Justice Department in 2015, but less than half the 69 recorded in 2013.

Federal prosecutors are at the center of most corruption investigations in Illinois and elsewhere because they have more resources and experience as well as an arms-length distance from local political pressure.

When Attorney General Madigan in 2006 was investigating hiring practices in the Blagojevich administration, she learned the limits of jurisdiction.

Patrick Fitzgerald, then-U.S. Attorney for the Northern District of Illinois, asked her to back off because it might interfere with his own probe. That took several years, but ended with a corruption conviction on multiple counts and a long prison sentence for the twice-elected Democratic governor. Blagojevich was also impeached and removed from office by the Democratic-controlled legislature.

In 2009, Madigan testified about the limits placed on her office before a state commission empowered to make recommendations about battling corruption in the wake of the Blagojevich debacle. She called for expanded powers for the attorney general to convene a grand jury in corruption cases, and the commission agreed.

Nothing came of it. Subsequent legislative proposals to broaden the attorney general’s authority have gone nowhere.

The most recent was introduced early last year by state Rep. Scott Drury of Highwood, a former federal prosecutor who lost a bid for the Democratic nomination for attorney general in the March primary.

Drury, despite his party affiliation, has been a vocal critic of Madigan’s father, powerful Illinois House Speaker Michael Madigan, likely a factor contributing to the measure being consigned to certain death in the House Rules Committee. Even so, Drury said he got no support for it from Rauner, either.

“Look, the reality is that politicians in Illinois don’t want another body of government, another one besides the U.S. Attorney’s office, with the capability to look into them,” said Drury. “What complicates it for the attorney general’s office is that it’s a political office. That adds more fear than just being prosecuted. There’s a fear of being politically prosecuted.”

There are other considerations beyond political concerns. Attorneys general are increasingly serving as front-line consumer protection advocates in cases involving financial and mortgage services, as well as public health. As the Trump administration backs away from that role by weakening the Consumer Financial Protection Bureau, states are stepping in to fill the regulatory void.

Although corruption-fighting remains politically attractive, Tierney said there are practical obstacles that also deter attorneys general from getting deeply involved.

“You can’t have a case without a cop, right, so you have to have trained investigators,” Tierney said. “You can’t do this by blog post or by campaign.”

In Illinois, the investigative process would be complicated, if not compromised, by the fact that the attorney general is elected, the director of the State Police serves at the pleasure of the governor, and the pursestrings for both are controlled by the legislature.

“I’d leave corruption to the feds,” said Ann Lousin, a professor of constitutional law at John Marshall Law School and a research assistant to the 1970 Illinois Constitutional Convention. “I think there’s always a temptation for anyone elected to have an enemies list.”